Chris Sprigman's Favorite Techdirt Posts Of The Week

from the good-stories,-bad-news dept

This was a great week of techdirt posts . . . but that doesn't mean this was a good week for rational tech and IP policy. A lot of what I read on Techdirt this week was coverage of stuff I wish hadn't happened.

For example, Glyn Moody's post on Google's offer to pay French publishers 50 million Euros in order to settle the dispute over Google's display of news snippets in its search results. This is bad news on a couple of fronts. First, it suggests that the French newspapers have a legitimate copyright claim, which they don't. Second, although Google can afford to pay for the privilege of doing what they are entitled to do for free, many of Google's potential competitors will not be so fortunate. So Google throws the French newspapers some of its spare change, and in the process raises barriers to competition. Yuck.

This hasn't been a good week for Google's promise not to do evil – and for some reason France is the epicenter of the bad behavior. Big Search has agreed to pay French ISP Orange for preferential handling of its traffic. Which is precisely inimical to the net neutrality principles that Google has been fighting for in the U.S. That said, Google's move is consistent with a French proverb that applies to a lot of its conduct lately -- Autre temps, autres moeurs.

Somewhat cheerier was Timothy Geigner's post on a Samsung Super Bowl Trademark ad that ridicules over-aggressive trademark law. It's significant mostly as proof that people now know enough about trademark law to understand when an ad is making fun of it. And it's also fun to see the NFL, which fields a team of lawyers that collectively lack a sense of humor or proportion regarding use of NFL marks, take a good clean hit.

While we're on the NFL, Mike Masnick's post on ICE's role as the NFL's private trademark cop is also worth reading. ICE has been seizing websites on dubious legal authority and without an adversary process. The latest batch of 313 websites may have something to do with counterfeit merchandise, or may not -- it's hard to tell without a hearing. And it's not like ICE never gets it wrong -- just recently they seized a bunch of supposedly counterfeit San Francisco 49'ers merch that turned out to be legit. Oops.

For those of you with a taste for DC inside-baseball, read this Masnick post reporting that the Obama Administration is considering filing a brief in the Georgia State University case -- that is, the recent district court decision that gave universities wide fair use latitude to put library materials on "e-reserve" for their students' use. It's not particularly surprising that the Administration would want to weigh in on this important fair use case. But it's a bit odd that they'd consider weighing in on behalf of the publishers. The story, apparently, is that the Copyright Office (which just hired a former RIAA VP as its second in command) is urging the Department of Justice to file an anti-fair use brief. Just over a year after the Administration ran away as fast as it could from SOPA and PIPA, the Copyright Office apparently hasn't gotten the memo.

Relatedly, check on this post on the U.S. government's threats to retaliate against the tiny Caribbean nations of Antigua and Barbuda if they set up legal piracy websites.
Legal piracy websites? Yup. The WTO gave permission for Antigua and Barbuda to retaliate against the U.S. by suspending U.S. patents and copyrights after a WTO trade court ruled that U.S. laws restricting online gambling violated treaty agreements and hurt Antigua and Barbuda trade. So the U.S. demands that other nations respect its (absurd) online gambling restrictions, but it won't respect its trading partners' rights to impose lawful trade sanctions. Sheesh.

Finally, if you're looking for a good-news story this week, take a look at Mike Masnick's post on the fallout from CNET's very unwise decision to remove Dish's Hopper DVR from contention for CES Best in Show. The CEA has taken away CNET's authority to pick the "official" CES award winner. Which makes sense given that CNET apparently has no editorial independence from its mega-content-owner parent, CBS. In a nice turnabout, CEA has given the Hopper a well-deserved share of this year's award.

Reader Comments

Where do I sign up for the Beta test?

I use a hearing aid, and it massively irritates the one working ear I have. But a non-surgical bone conduction hearing aid? One that might give me some semblance of binaural hearing without turning my ear canal into a mass of pain?

Re: Re:

No, my question was directed to Mr. Sprigman because he is the one who made the statement. Civil seizure has been on the books for many years, so I am attempting to ascertain if his statement is directed to the statute per se.

Re: Re: Re:

Civil seizure has been on the books for many years

...as has Ft. Wayne v. Indiana, CDT v. Pappert, and a whole slew of other rulings that say the ex parte seizure of speech-related goods is unconstitutional. They apply less to trademark infringement sites, but they certainly are relevant regarding the copyright seizures (Rojadirecta, Dajaz1, etc).

Re: ICE legal authority to seize domain names

So I called the authority "dubious" b/c ICE doesn't have any specific legal authority to seize domain names in advance of a hearing. And the First Amendment is hostile to prior restraints -- i.e., censorship in advance of a court's determination that a publisher or website has broken the law -- which is exactly what ICE is doing here. The Obama Administration has asserted that it is giving website owners sufficient due process, but that's just an assertion.

Another commenter mentioned civil forfeiture laws. Those don't apply here, b/c the seizures are made prior to any determination of law breaking.

Re: Re: Re: ICE legal authority to seize domain names

Um, no. And I'll let your comment stand as an excellent example of something that most law students realize in their first couple weeks of law school -- i.e., that law and logic are not the same thing, and if you try to reason your way to understanding the law, you're gonna get a lot of things wrong.

Google needs some help here

Chris, I enjoyed your post. Your discussion and expectations of Google highlight a contradiction I've wanted to point out but didn't know where. This is the spot. :-)

It's nice when Google stands up for the rest of us. But you know, sometimes it needs help. On net neutrality say: Google's position hasn't changed. I'm sure it doesn't want to pay for transit unnecessarily. But where is the effecive public pressure saying 'we want net neutrality?' Every few weeks there's another major news article about how big, bad, rich Google is taking X and not paying for it, where X is bandwidth, news articles, infringing music, illegal videos, etc. etc.

Google has a lot of outstanding disagreements with the EU. It sounds like the EU wants to redesign Google's search results pages now. Google has to buy off some of the disagreements or they'll lose on every issue because they're big, bad, rich, and uncooperative. They can't fight the world and win, they need some friends. If they think they have to buy off the telecoms and newspapers to avoid a Government-led redesign, well gee maybe the rest of us should, I dunno, do something about that if we don't like it?

Why is it in Google's enlightened self-interest to fight these battles when so few people care, and even fewer people care to change the law to encourage the better outcomes?

Where are the trolls?

I think I'll highlight these paragraphs [Note: bold mine]:

For example, Glyn Moody's post on Google's offer to pay French publishers 50 million Euros in order to settle the dispute over Google's display of news snippets in its search results. This is bad news on a couple of fronts. First, it suggests that the French newspapers have a legitimate copyright claim, which they don't. Second, although Google can afford to pay for the privilege of doing what they are entitled to do for free, many of Google's potential competitors will not be so fortunate. So Google throws the French newspapers some of its spare change, and in the process raises barriers to competition. Yuck.

This hasn't been a good week for Google's promise not to do evil – and for some reason France is the epicenter of the bad behavior. Big Search has agreed to pay French ISP Orange for preferential handling of its traffic. Which is precisely inimical to the net neutrality principles that Google has been fighting for in the U.S. That said, Google's move is consistent with a French proverb that applies to a lot of its conduct lately -- Autre temps, autres moeurs.

If the trolls were right, I thought this site and Mike "Torrent/Pirate Mike" Masnick were shilling for Google™! And then here comes a post wrapping up several posts showing disgust with Google™'s actions? Do the trolls not realize that their claim that anyone fighting for digital freedom is in the pocket of Google is easily debunked?

Seriously, we need better trolls, because their criticism of Google™ may be evidence enough that they can't use the simple search function in the upper-right corner to find evidence to the contrary.

Re: Where are the trolls?

If the trolls were right, I thought this site and Mike "Torrent/Pirate Mike" Masnick were shilling for Google™! And then here comes a post wrapping up several posts showing disgust with Google™'s actions? Do the trolls not realize that their claim that anyone fighting for digital freedom is in the pocket of Google is easily debunked?

Perhaps you need to check the byline. Mike didn't write the story. I don't recall if he commented, but doubt it.

Re: Re: Where are the trolls?

Perhaps you need to check the byline. Mike didn't write the story. I don't recall if he commented, but doubt it.

I know Mike didn't write the story. That's why I said 'I thought this site and Mike "Torrent/Pirate Mike" Masnick were shilling for Google™!' When I said "this site", I meant all of the people on Techdirt other than Mike Masnick, Chris Sprigman included.

And even though Mike didn't write those two articles, it's extremely safe to assume that since those posts were on Techdirt*, i.e. his website, they were done with his knowledge, consent, and/or will. It's ridiculous to assume otherwise.

Re: Re: Re: Where are the trolls?

Geez, don't get your panties in a twist. People frequent attack the substance of an article and attribute it to Mike and get flamed over it.

I guess what you are saying is just the opposite- that attribution of anything in an article to Mike is proper as "...they were done with his knowledge, consent, and/or will. It's ridiculous to assume otherwise."

Re: Re: Re: Re: Where are the trolls?

If Mike were really a shill for "Big Search", why would Techdirt carry any articles that conflict with his supposed agenda? To throw his accusers off the scent?

Or could it be there's no such agenda, and therefore any differences of opinion between Mike and other authors are nothing more sinister than differences of opinion? No, no... that would be logical, and we can deduce from past experience that Mike's most vocal critics aren't allowed to use logic.

Re: Re: Re: Re: Where are the trolls?

Geez, don't get your panties in a twist. People frequent attack the substance of an article and attribute it to Mike and get flamed over it.

I guess what you are saying is just the opposite- that attribution of anything in an article to Mike is proper as "...they were done with his knowledge, consent, and/or will. It's ridiculous to assume otherwise."

Glad to see we agree.

You miss the point. If a post is done on the main page by another author on Techdirt, attribute it to said author. However, assume it's done with Mike's blessing. That's what I was talking about, not attributing posts by other authors to Mike himself, but since this is his site, it's extremely fair to assign responsibility over Glen Moody's, Nina Paley's, etc.'s posts to him.

Re: Re: Re: Re: Re: Re: Re: Where are the trolls?

Next Weeks News Today

A week after ace TechDirt columnist Chris Sprigman vocalized hope for better news, several events have transpired that amazingly fit that request...

1. Chris Dodd retires, stating "I couldn't continue the lie anymore. All those years, all those diatribes, finally caught up to me. It's time to let some other hack defy reality. I'm through..."

2. Under pressure from citizens across the United States, and prodded into action thanks to a petition on the We The People web site, today the Obama administration announced that Carmen Ortiz has been summarily dismissed from her post for grievous negligence in the Aaron Swartz case.

3. In related news, calls to Attorney General Eric Holder's office seeking further comment on the Ortiz firing were not returned at press time. Inside sources however, requesting anonymity, have stated off the record "Yeah Holder's been fired too, but the big O felt bad for his crony so he's going to let him publicly state that he is resigning his post "for personal reasons".

4. Prenda's Brett Gibbs committed suicide early today. A note found at the scene stated "I'm sick of the judge, refusing to cooperate in my plans. I can't take it anymore. So let's see how well he can get me to cooperate now!..."

Re: Next Weeks News Today

5. Chris Dodd announces that Carmen Ortiz will be taking over his MPAA duties, who in turn begins drafting "Brett's Law" with the help of poor starving pornographers crippled by filesharing, living in mansions along the coast.

Re: Next Weeks News Today

Re Cambridge Univ. Press v. Becker, it is certainly understandable why the USG is considering filing an amicua brief either in support of the plaintiff or in support of neither party. Of course, if a brief is filed its type will be determined by the nature of the arguments raised at trial by the plaintiffs.

Quite frankly, the court's analysis of 17 USC 107 is quite surprising and in my opinion well off the mark as it applies to all four of the statutorily mandated exceptions. The first exception discussion does have a modicum of merit, but it hardly "slams" down in favor of the defendants. The discussion concerning the next three exceptions I find nothing short of remarkable. Without going into detail on each, let me say merely that in my opinion the court has stretched fair use like a "nose of wax".

I have dealt with the Copyright Office for many, many years, and my experience has been that the office does its best to serve as an honest broker in its analysis of Title 17. Invariably, its opinions clearly express the pros and cons of issues, and then provides an extensive analysis of which it believes conforms to the statutory provisions.

If it does in fact file an amicus, I submit it would be because of the judge's analysis of the fair use factors.

Odd?

"It's not particularly surprising that the Administration would want to weigh in on this important fair use case. But it's a bit odd that they'd consider weighing in on behalf of the publishers."

How is it odd for the Obama Administration to be taking a copyright maximalist stance when it's done so far too many times in the past?

Don't forget this is the administration responsible for domain name seizures without due process, for threatening ISPs into adopting a six strikes policy, for supporting the elimination of the first sale doctrine on copyrighted works manufactured abroad, for pushing ACTA in secret negotiations (and now TPP in its place), and for opposing SOPA and PIPA only after it became obvious they wouldn't make it to the president's desk?

Or perhaps you meant "odd" in the sense of "fishy" or "peculiar"? Take a look at Obama's greatest contributors and Joe Biden's closest friends and you'll realize there's definitely something fishy going on.

Re: Odd?

...for threatening ISPs into adopting a six strikes policy...

I limit my commentary to only your most glaring falsehood. As I have said a million times, the ISP's embraced six strikes because they too make money on the delivery of content. I don't know how you can continue to deceive yourself. The ISP's see six strikes as being in their financial interest.

Re: Re: Odd?

I'm well aware that the largest ISPs in the United States are owned by entertainment industry giants, but what about the Obama Administration's involvement in moving the six-strikes negotiations forward?

Re: Re: Re: Odd?

I'm unaware of any studio owning owning an ISP. I think you are both grasping and have it backwards as well. Comcast owns NBC/U, but Time Warner does not actually own TW Cable. And their interest in protecting content is protecting their ability to monetize content that they license, rather than content they produce (except Comcast has dual interests). Sorry for raising inconvenient facts.

What about the administration's role? I wasn't there, but as far as anyone knows; their involvement (if any) may have prevented more harsh measures of enforcement. Please feel free to cite your source about what the administration's role was.

*for supporting the elimination of the first sale doctrine on copyrighted works manufactured abroad,

This is proper and will actually assure that textbooks don't rise to unaffordable prices in third world countries

*for pushing ACTA in secret negotiations (and now TPP in its place),

this is hardly unprecedented and most negotiations have a veil of confidentiality until they're largely concluded. Diplomacy is different than legislation and doesn't lend itself to crowdsourcing.

*and for opposing SOPA and PIPA only after it became obvious they wouldn't make it to the president's desk?

Former Googler, Andrew McLaughlin (then WH Science and Tech advisor) kept up the pressure in the WH to not endorse SOPA from Day One. There was an internal battle that raged since COICA. There was no flip-flopping, when it became clear it was dead, the situation in the WH resolved according to political reality.

Re: Re: Re: Re: Odd?

It makes little difference whether NBC owns Comcast or Comcast owns NBC. The conflict of interest exists either way, but that's beside the point. The point is that the Obama Administration was instrumental in getting ISPs to agree to a six strikes plan. See here for information concerning their involvement.

As for ISPs wanting to monetize content that they license, I have no idea what you're talking about. How is the most commonly pirated content being licensed to ISPs when it's already available to all via Netflix, Hulu, iTunes, Amazon, DVDs, Blu Ray discs, CDs, etc? Aside from Hulu being owned in part by Comcast, how do ISPs profit from the licensing of any of these works?

Regarding your other points, it seems you do not object to the basic fact that the Obama Administration is trying to gut the first sale doctrine and has conducted copyright negotiations in secret. Your objection to those points is therefore debatable. I find nothing proper in gutting the first sale doctrine so publishers can continue to gouge US students, nor is there anything proper about secretly organizing major changes to copyright law.

Also, one guy "keeping up the pressure in the WH to not endorse SOPA from day one" is hardly the same thing as the White House actually opposing SOPA from day one. A clever bit of sleight of hand on your part nonetheless.

Re: Re: Re: Re: Re: Odd?

You can't be that stupid, can you? If the identical free content is being distributed over ISP networks as they offer for a fee, why would they want to facilitate that?

Text books are being sold cheaper abroad to reflect economics. If Wiley loses the Kirtsaeng case, they and others will simply raise foreign prices so as not to cannibalize their domestic market. Watch out what you wish for because you will lose either way. Lose bigger if Kirtsaeng wins.

McLaughlin was hardly alone. This happens on tons of bills in every administration.

Re: Re: Re: Re: Re: Re: Odd?

"You can't be that stupid, can you? If the identical free content is being distributed over ISP networks as they offer for a fee, why would they want to facilitate that?"

Huh? I'm saying the content in question is already available without customers paying extra to ISPs. I'm saying it's a made-up issue, since most of the content people consume (legally or otherwise) isn't being licensed by ISPs but by third parties.

"Text books are being sold cheaper abroad to reflect economics. If Wiley loses the Kirtsaeng case, they and others will simply raise foreign prices so as not to cannibalize their domestic market. Lose bigger if Kirtsaeng wins."

Let them raise prices if they think they can make more money that way. Society loses bigger without the first sale doctrine.

"McLaughlin was hardly alone. This happens on tons of bills in every administration."

OK. Now show me an official message from the White House indicating its opposition to SOPA and PIPA prior to the one it released once it became obvious the bills wouldn't pass.

Re: Re: Re: Re: Re: Re: Re: Odd?

"You can't be that stupid, can you? If the identical free content is being distributed over ISP networks as they offer for a fee, why would they want to facilitate that?"

Huh? I'm saying the content in question is already available without customers paying extra to ISPs. I'm saying it's a made-up issue, since most of the content people consume (legally or otherwise) isn't being licensed by ISPs but by third parties.

Ever hear of pay-per-view? Or HBO or Showtime?

"Text books are being sold cheaper abroad to reflect economics. If Wiley loses the Kirtsaeng case, they and others will simply raise foreign prices so as not to cannibalize their domestic market. Lose bigger if Kirtsaeng wins."

Let them raise prices if they think they can make more money that way. Society loses bigger without the first sale doctrine.

You don't understand the issue. If Wiley et al don't get protected tiered pricing, they will simply raise the cost in third world markets. The only loser will be third world educational systems. That's real collateral damage. Wiley wins either way.

"McLaughlin was hardly alone. This happens on tons of bills in every administration."

OK. Now show me an official message from the White House indicating its opposition to SOPA and PIPA prior to the one it released once it became obvious the bills wouldn't pass.

I spent a year of my life on the bill. Yet the WH still refuses to cc me on internal communication. Bizarre, huh?

The VP's office was on the pro-SOPA side as was IPEC's office. Science & Tech and the commerce guys opposed. The battle raged until Lamar foolishly recessed the markup- then the outcome was clinched. Ask Masnick if you don't believe me, he was there too.

Re: Re: Re: Re: Re: Re: Re: Re: Odd?

The VP's office was on the pro-SOPA side as was IPEC's office. Science & Tech and the commerce guys opposed. The battle raged until Lamar foolishly recessed the markup- then the outcome was clinched. Ask Masnick if you don't believe me, he was there too.

I don't know if that's entirely true. But, yes, VP/IPEC were pro-SOPA (as were DHS/DOJ). OSTP... was *mixed*, not opposed. Some in there did not like it. But, you know darn well that VP/IPEC have a lot more sway on these issues than OSTP, and WH had *definitely* indicated to Congress that it would sign the bill earlier. What pushed things over the edge was State Department quietly getting involved, plus growing attention to the issue and complaints from the public.

Lamar recessing the markup did not help your cause, but definitely did not cinch the deal. Harry Reid and Chuck Schumer were gung ho to have PIPA be the first thing on the agenda in January. It was people speaking out on the 18th that killed the bill. White House flip flop came mainly due to State Dept. pressure over the DNS issue.

Re: Re: Re: Re: Re: Re: Re: Re: Odd?

By enabling companies to control what you sell, by including copyrighted items that they import in their products, like software. The essence of serfdom is that those in power have control over what you can do.

Re: Re: Re: Re: Odd?

This is proper and will actually assure that textbooks don't rise to unaffordable prices in third world countries

The only reason textbook prices don't rise to unaffordable prices, is because then nobody could afford them, and they wouldn't buy them.

If Wiley could raise its prices in India, they would have already. They know that if they do, they will simply lose the Indian market to an Indian publisher, whose prices will more accurately reflect the equilibrium price in the open market.

So, it's far more likely that Wiley (and others) will lower their prices in the U.S. to reflect the growing competition from Indian versions.

Publishers already know this. The high prices of U.S. textbooks has nothing to do with a free market; they are priced so high because they have a captive market. U.S. students pay ridiculous prices because they have to in order to take a course.

And publishers have already started moving to models where first sale (even of legal U.S. copies) isn't possible. The trend nowadays is to put a significant amount of the course material (problem sets, appendices, etc.) online. Access to these materials requires an access code - one that can't be resold. The publisher then pressures the college to require these online materials; and the colleges (already under pressure to make classrooms "digital-friendly") often comply. This is especially prevalent with community colleges - meaning they're disproportionately exploiting the very sectors of college society who can least afford it.

I know this first-hand. Because of this, I have three editions of the same calculus textbook, for which I paid hundreds of dollars each, and can't resell to anyone.

Re: Re: Odd?

As I have said a million times, the ISP's embraced six strikes because they too make money on the delivery of content. I don't know how you can continue to deceive yourself. The ISP's see six strikes as being in their financial interest.

This is not, actually, true. Different ISPs had different opinions, but NONE happily embraced six strikes -- even Comcast, owned by NBC Universal, was not thrilled about the idea. Some ISPs remain fairly anti- the whole idea, but were pushed into it by political forces beyond their control.

Having spoken to a number of people involved in the negotiations, the idea that they "embraced" it is beyond laughable. It took nearly 3 years of negotiations and pressure to get them to agree to it, and then another year and a half to launch? That's not embracing shit.